Introduction
The Australian Government ceased accepting new applications for the Business Innovation and Investment (Provisional) visa (subclass 188) on 31 July 2024. Further reforms to the program are expected later this year. In the meantime, existing subclass 188 visa holders, particularly those in the Business Innovation and Investor streams, are preparing to apply for the permanent Business Innovation and Investment (Permanent) visa (subclass 888).
This article outlines the key eligibility criteria shared by the two most common permanent residency pathways:
- the Business Innovation stream (subclass 888A); and
- the Investor stream (subclass 888B).
Role Swapping: A Strategic Option
A key feature of the subclass 888 visa framework is “role swapping”, which allows a secondary visa holder under subclass 188 to become the primary applicant for the subclass 888 visa.
This is particularly useful when the secondary applicant has taken the lead in managing the business or investment activities. Role swapping is permitted in both the 888A and 888B streams, providing flexibility for couples involved in business or investment activities.
Common Criteria for 888A and 888B Applicants
Whether you’re applying for the Business Innovation stream (888A) or the Investor stream (888B) of the subclass 888 visa, there are several key criteria that apply to both pathways. Understanding these shared requirements is essential to avoid common pitfalls and ensure your application is on the right track.
No History of Unacceptable Business or Investment Activities
You and your partner must not have been involved in business or investment activities that are considered unacceptable in Australia (Migration Regulations 1994, cl. 888.211). In the 888 visa context, this generally includes:
- engaging in unlawful or fraudulent business practices;
- breaching Australian corporate or tax laws; or
- violations of Foreign Investment Review Board (FIRB) conditions.
⚠️ Note: Always ensure compliance and regularly review your business practices to prevent inadvertent regulatory breaches.
Your State Nomination Must Still Be Valid
Your application must be supported by a valid nomination from the State or Territory government under clause 888.212 of the Migration Regulations.
⚠️ Note: It is common for subclass 188 visa holders to refine their business strategies after settling in Australia. If you are planning significant changes to your business, such as changing industries or restructuring the business, it is important to first update your business plan and submit it to your nominating State or Territory authority for review. Taking this step helps ensure your nomination remains valid and reduces the risk of visa refusal caused by nomination withdrawal.
Show Genuine Commitment to Business or Investment in Australia
The Department of Home Affairs will look for evidence that you have a genuine and realistic commitment to continue your business or investment activities in Australia (Migration Regulations 1994, cl. 888.213).
📌What does this mean in practice?
You need to make a declaration using Form 1398 along with your application and provide a business plan outlining your plan to demonstrate an understanding of the Australian business and investment environment in which you are operating and how your activities will continue to provide economic benefits to Australia.
⚠️ Note: It can be difficult for case officers who often do not have business backgrounds to make a sound assessment on your business plan. That’s why it is important to submit strong supporting documents, and to be well-prepared for a potential interview. Having a lawyer present can help ensure your case is clearly presented and legally sound.
Pathway to Permanent Residency: Business Innovation Stream (888A)
The Business Innovation stream of the subclass 888 visa (888A) is one of the most popular permanent residency pathways under the Business Innovation and Investment Program. This is largely due to its lower capital entry requirements and practical route for experienced business owners.
Eligibility Criteria at a Glance
You must have held a 188A visa for at least 3 years before applying for the 888A visa (Migration Regulations 1994, cl. 1104BA(4)(1AA)).
You must have resided in Australia for a total of:
- at least 1 year within the last 3 years if you were invited after 1 July 2021; or
- at least 1 year within the last 2 years if you were invited before 1 July 2021.
(Migration Regulations 1994, cl. 888.221)
Business Ownership Requirements
You must demonstrate continuous ownership and active involvement in at least one Australian business during the 24 months immediately prior to application. The required ownership percentage depends on the turnover of the business:
- 30% ownership if turnover is AUD 400,000 or more;
- 51% if the turnover is less than AUD 400,000; or
- 10% if the business is a publicly listed company.
(Migration Regulations 1994, r. 1.11 & 888.222)
⚠️ Note: The Department may accept consecutive ownership of more than one business (e.g. if you closed and opened a new business) provided there is minimal or no break in operation.
Demonstrating Management Involvement
A common issue applicants face is failing to prove they have had direct and continuous involvement in the day-to-day management and strategic decision-making of the business. The burden is on the applicant to submit adequate documentary evidence. You must show that your involvement had a material impact on the business’s day-to-day direction and performance.
Financial and Business Thresholds
Unless exempted by the nominating State or Territory, your business must have achieved a minimum turnover of AUD 300,000 in the 12 months prior to application. Additionally, you and your spouse must meet at least two of the following three requirements:
- Personal assets: Net business and personal assets of at least AUD 600,000, held throughout the last 12 months and continuing at the time of application;
- Business value: The net value of your business interest is at least AUD 200,000 for the 12 months prior to application and continues to do so; and
- Employment creation: The business employed at least two full-time equivalent employees, who are Australian citizens, permanent residents, or New Zealand citizens.
(Migration Regulations 1994, cl. 888.225)
What if I am running out of time and have not yet met the 888A visa criteria?
If you’re approaching the end of your subclass 188A visa (typically valid for 4 years and 3 months) and you’re not yet eligible to apply for the 888A permanent visa, you may be able to apply for a two-year extension under the 188 Business Innovation Extension stream.
188A Extension Stream – Your Second Chance
To qualify for the 188A Extension visa, you must have held your original 188A visa for at least 3 years at the time of application (cl. 1202B(5)).
State Nomination Extension
Before lodging your visa application, you should extend your nomination with the relevant State or Territory government. Each jurisdiction sets its own requirements, but you’ll generally need to show that you:
- have invested the required amount and settled in the nominated region;
- have actively operated your business in Australia for at least 2 years; and
- are likely to meet the permanent visa (888A) criteria if the extension is granted.
Visa Application Requirements (cl. 188.231–188.233)
Once your nomination extension is approved, you can apply to the Department of Home Affairs. You must again demonstrate that you:
- need to reside in Australia to manage the business;
- have maintained continuous ownership of the business over the past 2 years; and
- have a genuine and realistic commitment to continue managing the business to provide economic benefits to Australia.
⚠️ Note: Supporting your application with a well-prepared business plan and strong evidence of ongoing involvement is key to success.
📌 Unable to Meet the 888A Visa Requirements? Here’s What You Can Do Expert
For many entrepreneurs, identifying the right business opportunity and executing a successful business strategy in a new market can take years. If you are finding it challenging to meet the 888A visa requirements within the limited timeframe, you are not alone. To support you in focusing on what you do best, our firm offers access to a selection of eligible business opportunities that align with the 888A visa criteria. We also collaborate with experienced industry advisors who can assist you in refining your business strategy and meeting the necessary benchmarks. This allows you to maximise your potential while progressing toward permanent residency in Australia.
Pathway to Permanent Residency: Business Investor Stream (subclass 888B)
The subclass 888 visa provides a permanent residency pathway for holders of the provisional subclass 188 visa under the Investor stream. To qualify, applicants must satisfy specific residency and investment requirements that vary depending on when their original visa invitation was issued.
Residency requirements for the 888B visa
To meet the residency criteria for the 888B visa, you must demonstrate that you have lived in Australia for:
- At least two years in the four years prior to your 888B visa application if you were invited to apply for the 188B visa before 1 July 2021; or
- At least two years in the three years before your application if you were invited on or after 1 July 2021.
(Migration Regulations 1994, clause 888.231)
Investment requirements for the 888B visa
You must provide evidence from the relevant State or Territory Treasury Corporation confirming that the designated investment was made in your name or your spouse’s name and that it has not been withdrawn for the required period:
- for 188B visa applications lodged before 1 July 2015, the investment must have been held for at least 3 years and 11 months; or
- for 188B visa applications lodged on or after 1 July 2015, the investment must have been held for at least four years.
(Migration Regulations 1994, clause 888.232)
If you were invited to apply for your 188B visa after 1 July 2021, you must have maintained a complying significant investment throughout the entire period that you held the 188B visa
(Migration Regulations 1994, clause 888.233).
⚠️Note: If your designated investment has matured, you must provide documentary evidence such as a letter or email from the Treasury Corporation or a bank statement confirming the repayment of the investment.
Key differences in investment types: Designated investment vs Complying Significant Investment
The nature and amount of your investment depend on when you were invited to apply for your 188B visa:
- If invited before 1 July 2021, you were required to invest AUD 1.5 million in a designated investment, typically State or Territory government bonds.
(Migration Regulations 1994, clause 188.246) - If invited on or after 1 July 2021, you must invest at least AUD 2.5 million in a complying significant investment, structured as follows:
- at least 20 percent in one or more venture capital funds;
- at least 30 percent in emerging companies investments (eg. securities quoted on ASX);
- The remaining balance may be invested in managed investment funds (commonly known as fund-of-funds).
(Migration Regulations 1994, clause 888.246A & Migration Instrument IMMI 15/100)
Support for Your Subclass 188 to 888 Visa Journey
Transitioning from a subclass 188 visa to the subclass 888 permanent residency pathways can be complex and challenging, particularly given the detailed criteria and documentation requirements involved. Whether you are navigating the Business Innovation (888A) or Investor (888B) stream, understanding these eligibility criteria, strategic options like role swapping, and ensuring compliance with nomination conditions are vital steps toward a successful application.
MLS specialise in assisting business owners, entrepreneurs, and investors throughout their visa journey. If you require tailored guidance or support to enhance your application’s prospects of success, our expert team is here to help. Contact us today to discuss how we can assist you in securing your Australian permanent residency.
